The O.S.C.E. Bureau for Democratic Institutions and Human Rights (O.D.I.H.R.) released its interim opinion on the draft law on the reform of the Supreme Court of Justice and the bodies of the Prosecutor’s Office, previously initiated by the Government led by Maia Sandu. 

Through this opinion, O.D.I.H.R. emphasizes that the procedure by which this project was developed and adopted does not align with democratic principles, taking into account the fact that there was a relatively short timeframe for consulting the project, but also for conducting an in-depth study on the expected impact.

On August 28, the government led by Maia Sandu presented the concept of reform in the justice sector, targeting the Supreme Court of Justice, Anticorruption Prosecutor’s Office, the Superior Council of Magistracy, but also the Superior Council of Prosecutors. The proposals relate to the evaluation of judges and prosecutors, as well as the modification of the competences of the key institutions in the field of justice.

The O.D.I.H.R. emphasized in a report its opinion regarding the reforms initiated in the justice system. 

“Any legitimate process of reform of the judiciary, especially when it is proposed to reform the highest national judicial institutions, must be a transparent, inclusive, large-scale one and involve an effective consultation process, including with representatives of the judicial system, with the associations of judges and lawyers, with the academic environment, civil society organizations and must include conducting a study for the full impact assessment, including assessing its compatibility with the relevant international standards, in accordance with the principles set out above. It is necessary to be given an appropriate term for carrying out each stage of the legislative process, ” mentions the O.D.I.H.R. in the area of ​​worrying issues regarding the procedure for elaborating and adopting the amendments to the project on reforming the Supreme Court of Justice and the Prosecutor’s Office.

The experts who elaborated the opinion on this draft law also specify that the implementation of such urgent reforms, in the immediate period following the elections, could result in causing a long-term harmful impact.

“In case the authorities nevertheless decide to continue implementing such an ad-hoc mechanism, a substantial revision of the Bill is recommended, in order to ensure that extremely strict guarantees are established to guarantee judicial independence,” the experts mention .

In this context, the O.D.I.H.R. states that the procedure for re-evaluating judges should be carried out on the basis of clear and objective criteria, by institutions having all the characteristics of an impartial and independent court, in accordance with the basic standards of a fair trial.

According to the project, the evaluation of prosecutors and judges  will be carried out in two stages:

• Integrity assessment
• Assessment of the professional activity and personal qualities of the candidates

„The evaluation of the judges of the Supreme Court of Justice is made on the basis of three criteria: integrity and lifestyle, professional activity during the last 10 years and the personal qualities relevant to the position of judge. The indicators and the evaluation methodology are approved by the Evaluation Commission,”  is mentioned in the report.

In O.D.I.H.R.’s opinion, however, it is specified that “integrity” is a fairly general term, respectively, it is necessary to clarify the field of application and the meaning of the notion of “integrity”. 

With regard to the “lifestyle”, the experts state that, apart from the fact that it is an unclear phrase, it may serve as a potential reason for applying discriminatory treatment: “Respectively, the criterion set on the” lifestyle “must be removed from the Bill or, alternatively, to be defined more clearly, by including the specification which types of undesirable behavior could have a negative impact on the reputation of the judiciary, and which could result in the judge’s failure to promote the assessment. Also, the O.D.I.H.R. recommendations for project improvement include the following:

• discussing the possibility of delaying the entry into force of the new law, to ensure that there is a sufficient period of time to prepare the necessary adjustments for the implementation of the law;
• increase the deadline for the creation of the Evaluation Commission, as well as the designated period for the re-evaluation of the judges of the Superior Council of Justice;
• reconsidering the composition of the Evaluation Committee and the procedures for appointing members;

Read the full report here. 

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Diana Gaţcan, gatcan.diana@gmail.com